Chapter 9 –Status and Institutional Structure of Tribunals (Courts)

9.1 Introduction

The CMCRT has divided the discussion of representative options related to the status and institutional structure of tribunals into two separate chapters: this one, focusing on the status and structure of courts, and the next chapter, focusing on the status and structure of panels.

As discussed in Chapter 7, there are aspects of the current court martial tribunal system that challenge the effectiveness, efficiency, and legitimacy of the court martial system overall. For instance, courts martial currently take, on average over the last five years, approximately 140 days to complete from the time that charges are preferred by the DMP,¹ which contributes to the overall time from charging to trial completion of 434 days within the current court martial system.² Additionally, the court martial tribunal system is perceived by some as ineffective to meet the disciplinary needs of the CAF chain of command due to a failure to produce timely outcomes and to generate accurate / correct outcomes when sentencing offenders. Further, from an efficiency perspective, there are reasons for concern that the current tribunal system produces its effects at a disproportionate financial or human resources cost. Lastly, on legitimacy, the CMCRT received comments that suggest that the tribunal system is perceived as less fair and intelligible than the civilian justice system’s courts.

This chapter considers two representative options to change a number of aspects of the court martial tribunal system, with one option that is more military in character, and one option that is more civilian in character.

9.2 Overarching Considerations Relating to Tribunals / Courts

As a preliminary matter, the CMCRT notes that several overarching considerations relating to tribunals appear to emerge from the current comprehensive review that merit discussion at the outset.

9.2.1 Permanent or ad hoc

First, a policy choice exists as to whether to structure a tribunal in a permanent, standing arrangement, or in an ad hoc arrangement (as within the current system). Some observers have suggested that a permanent court would have a better ability to deal with preliminary matters, to quickly set matters down for hearing or trial, to implement rules of court, and to conduct more expedient hearings (without having to take an oath at the start of every trial).³ All of these changes would likely contribute positively to more timely outcomes, and more proportionate financial and human resource costs in ways that increase efficiency, for instance, by allowing the tribunal to accept early guilty pleas and to set down hearing dates and by permitting the court as a whole to deal with all hearings related to the matter.

However, it could be argued that the current ad hoc arrangement already permits many of the above possibilities. The NDA permits the Chief Military Judge to make rules governing different aspects of practice and procedure in the court martial system,⁴ although no such rules have yet been made. Furthermore, the NDA permits any military judge to deal with preliminary matters at any time after a charge has been preferred.⁵ Between these two provisions of the NDA, the benefits associated with establishing a permanent court may already be achievable within the current system.

Comparative analysis, both of foreign court martial systems⁶ and Canada’s civilian criminal justice system,⁷ suggest that better case management strategies⁸ and systems would be advantageous within the court martial system in order to promote more timely outcomes and more proportionate financial and human resource costs. This point is difficult to dispute. However, it does not necessarily follow that the creation of a permanent court is the only way, or the best way, to implement a better case management system within the court martial system. It is arguable that such a system could be implemented today, independent of any changes to the current tribunal system, on the basis of authority that is already provided in the NDA.⁹

9.2.2 Military or Civilian Judges

A policy choice exists as to whether it would preferable to use military or civilian judges within a court martial system.

Generally speaking, consultation suggests that military judges are perceived as being capable of contributing to the generation of accurate / correct outcomes by bringing a level of military expertise to the tribunal that civilian judges will not necessarily possess.¹⁰ The CMCRT also notes that, in theory, military judges should also contribute to the system’s universality, because their military status and training should permit them to be able to perform their judicial duties more practicably across the full spectrum of military operations. With respect to universality, however, the CMCRT notes that military judges may perceive that they cannot be required to perform the types of military training that would make them capable of performing their duties in more dangerous or austere environments,¹¹ which could mean that universality is unaffected by the military or civilian status of the judge.

Consultation suggests that civilian judges are perceived as being able to contribute to the generation of accurate / correct outcomes by bringing a level of adjudication and criminal law expertise to the tribunal that military judges will not necessarily possess.¹² Consultation similarly suggests that civilian judges are perceived as being able to contribute to the fairness of the tribunal (because of their independence from the CAF), and to the system’s intelligibility, because civilian judges are more familiar to both members of the CAF and the broader public when it comes to the adjudication of criminal or penal offences.¹³ Additionally, comparative analysis suggests that other court martial systems that use civilian judges have not experienced problems with the universality of their tribunal systems.¹⁴

The CMCRT notes that, based upon the above discussion, reserve force military judges may represent a sort of hybrid judge – ideally, with comparable military status and experience to that which regular force military judges possess, but with potentially much more criminal law expertise from day-to-day practice in civilian criminal courts that deal with a significantly higher volume of cases than the court martial system. The link that reserve force personnel have to civilian society may also serve to strengthen perceptions of their independence from the CAF, and therefore of the fairness of proceedings over which they preside. In this sense, reserve force judges may possess a unique blend of status, skills, knowledge, and experience that would position them well to contribute to the generation of accurate / correct and more timely outcomes.

As this discussion indicates, the military or civilian status of a judge can have influences on a number of different features within a court martial system, so a policy choice for one type of judge over another must consider both the positive and negative impacts that this choice will have across the combined principles of effectiveness, efficiency, and legitimacy.

9.2.3 Court Reporters: Military Personnel or Contracted Civilian Service Providers

A policy choice exists with respect to the provision of court reporting services between the use of full-time military personnel and the use of contracted civilian service providers. Generally speaking, the use of full-time military personnel will tend to incur less proportionate financial and human resource costs and will be less scalable because an established capability level will need to be maintained regardless of the volume of court reporting work that the system requires at any given point in time.

Additionally, although this point was not raised during consultations, the CMCRT is aware that the current mechanism of using military personnel for the provision of court reporting services does not lead to the production of transcripts in a timely manner. Notwithstanding QR&O 112.66, which requires that, “as soon as practical after the proceedings of a court martial are terminated,” a transcript of the proceedings is to be prepared, the CMCRT understands that it can take months to produce transcripts, and these will only be produced when a court martial decision is under appeal. This lack of timely transcripts may lead to systemic challenges in generating accurate / correct outcomes, since a military judge would be unable to rely on the transcript when deliberating or writing reasons for a decision.

The use of military personnel should, in theory, contribute to the system’s universality, because the military status and training of court reporters should permit them to be able to perform their judicial duties more practicably across the full spectrum of military operations. However, in practice, only a portion of one court martial has been held in an active theatre of operations over the last decade, and courts martial tend to be held only in safe and non-austere environments where the military status and training of the court reporters does not produce additional universality benefits.

Comparative analysis suggests that in systems where civilian court reporting services are used, transcripts are produced in a timely manner (generally within 24 hours) that may contribute to the generation of accurate / correct outcomes, at a proportionate financial cost, and in a manner that does not impact the system’s universality.¹⁵

9.2.4 Judicial Training Opportunities

Regardless of what type of judge presides within a court martial system, there may be some advantage to offering the judges opportunities to increase their military knowledge and expertise, through annual formalized training and exposure to the CAF.¹⁶ These opportunities, if judges engaged with them, could increase the generation of accurate / correct outcomes by ensuring that they are familiar with recent military practices and culture and the impact of misconduct on the CAF.

However, it should be noted that a recent legislative proposal¹⁷ that would require judges to undertake sexual assault training has raised some questions regarding the constitutionality of the initiative relating to the administrative independence of the judiciary.¹⁸ While it is difficult to see any policy drawbacks associated with offers to make CAF familiarization and training opportunities available to judges, it must be acknowledged that such opportunities likely could not be mandatory, and may therefore have limited impact depending on the level of judicial willingness to engage in the opportunities that may exist.

With all of the overarching considerations relating to tribunals / courts in mind, the sections below will examine two options related to how a court or tribunal could be structured to improve upon various features of the current court martial system in ways that could have a positive impact on the effectiveness, efficiency, and legitimacy of the court martial system overall. As noted above, policy choices could easily be made to adapt these two options in a number of different ways to achieve slightly different effects.

9.3 Option 1: Military-only – Permanent military court composed of military judges

Under Option 1, a Permanent Military Court composed of military judges would be created. This court would continue to be an itinerant court, sitting inside and outside of Canada, using existing CAF infrastructure and logistics to support the court.

Under this option, the Chief Military Judge of the Permanent Military Court would be a regular force member. The current regular force judges would continue to sit, should they choose to, until a maximum compulsory retirement age of 60. Newly appointed judges would all be drawn from the reserve force panel that is currently provided for under the NDA¹⁹ and would be required to have at least ten years at the bar in order to be eligible to be appointed. Under this option, it would not be necessary for reserve force judges to be presently enrolled in the CAF in order to be considered for appointment, so long as they had prior military experience, as they could be enrolled in the reserve force immediately prior to being appointed as reserve force judges. This option would provide, to the extent possible, that persons appointed as reserve force judges must have experience, expertise and interest in, and sensitivity to, criminal law.²⁰

Under this option, reserve force judges would be remunerated on a per diem basis, following a set formula likely similar to the remuneration provided to judges under the Judges Act. Additionally, under this option, when reserve force military judges preside over courts martial they would sit rank-less.²¹

Under this option, military units would still be required to provide members to act in certain roles to support a court martial, such as ‘officer of the court’.

9.3.1 Assessment of Option 1

It is assessed that relative to the current court martial system, this option would significantly increase the effectiveness, efficiency, and legitimacy of the current court martial system based on potentially significant increases in the proportionality of financial and human resources costs, potentially significant increases in timely outcomes, and potentially significant increases in the generation of accurate / correct outcomes. Furthermore, it is assessed that under Option 1, the court martial tribunal system would likely be more scalable and intelligible. Overall, the CMCRT assesses that this option would result in a significant improvement from the status quo in terms of the collective principles of effectiveness, efficiency, and legitimacy.

It is estimated that, under this option, there would be a significant increase in the proportionality of financial and human resource costs since, once the system has fully transformed to a reserve force judge model, military judges would only sit and be remunerated when required for a particular case. This could result in significant financial savings through a compensation model that, on an ongoing basis, ensures that just enough judicial resources are engaged by the court martial system, rather than paying annual salaries to full-time judges in a way that is less precisely calibrated to meet the exact needs of the system at any given time.

It is also assessed that this option could increase the generation of accurate / correct outcomes as the reserve force judges, under this option, would ideally be required by statute to have experience, expertise, and sensitivity and interest in, criminal law.²² Additionally, the military expertise may increase as the military judges would be provided with opportunities for annual training and exposure to the CAF.²³

It is assessed that this option would be as scalable as the current court martial tribunal system is in theory, but even more scalable than the current system is in practice, since it would shift toward a more heavily reserve force model over time where military judges would only sit and get paid when actually required, depending on the need for a court martial. As within the current system, the use of reserve force judges who are paid on this per diem compensation basis would permit the government to appoint a large number of judges to deal with unexpected increases in case volumes if the need ever arose, without incurring the liability of paying a full-time salary until all of the judges reached retirement age.²⁴ In contrast with the current system, reserve force judges would actually be appointed, and would be the principal judicial actors within the system.

However, it is estimated that under this option the court martial system may still be perceived as less fair by some, because accused military personnel would still be judged by members of the CAF. This perception may persist even if the judges are rank-less.²⁵ That being said, using rank-less judges could increase perceptions of fairness and independence in the system from the status quo. Additionally, the removal of military ranks from the judges’ uniform could make the system more familiar to both the CAF and broader public, making the system more intelligible.

9.4 Option 2: Military-Civilian Combination – Permanent military court composed of civilian judges

Under Option 2, a Permanent Military Court composed of civilian judges would be created.²⁶

Under this option, civilian judges would be cross-appointed to the Permanent Military Court from the Superior Courts across Canada. They would be appointed in the same manner, and have the same security of tenure, as a Superior Court judge. They would have a maximum retirement age of 75.

The current military judges would be eligible to be appointed to the Permanent Military Court provided that they release from the CAF and provided that are first appointed as Superior Court judges. In other words, the former military judges would need to apply to be appointed as a Superior Court judges, and would be eligible, like any other eligible lawyers, to be appointed as Superior Court judges of the provinces in which they are called to the bar, and to the Permanent Military Court.

Under this option there would be an ideal target on the number of Superior Court judges who could be cross-appointed to the Permanent Military Court. The purpose of this target would be to ensure that the cross-appointed judges have, to the extent possible, criminal and military expertise and, to reduce the costs associated with offering the judges military exposure and familiarization opportunities. However, more Superior Court judges would be cross-appointed to the Permanent Military Court in jurisdictions where there is a significant military presence, and less judges in jurisdictions without any standing military presence.²⁷ This option would provide that judges appointed to the Permanent Military Court preferably have experience, expertise, and interest in, and sensitivity to, criminal and military law.²⁸

The Chief Justice of the Permanent Military Court would be appointed from the Federal Court to facilitate the coordination that would be required as, under this option, the Permanent Military Court’s headquarters would be co-located with Federal Court offices, and military cases would be heard in Federal Court locations across the country.²⁹

Under this option, cross-appointed judges would sit as judges of the Superior Court unless they are required to sit on the Permanent Military Court.³⁰ After consulting with the Chief Justices of the Superior Courts regarding the judges’ availability, the Chief Justice of the Permanent Military Court would assign judges to military cases. Under this option, the cross-appointed judges would continue to receive their existing federal remuneration, and would not receive additional remuneration for military cases that they are assigned, as military cases would be incorporated into their already existing workload.³¹

Based on an estimated 50-100 trials³² per year flowing through the Permanent Military Court, and a moderate number of judges who would be cross-appointed, it is estimated that any additional workload for the cross-appointed judges would be almost negligible.

Under this option, if required, the Permanent Military Court could sit outside of Canada, and in such cases, cross-appointed judges would be statutorily deemed to have military status and would wear a rank-less military uniform.³³

9.4.1 Assessment of Option 2

It is assessed that relative to the current court martial system, implementation of this option would likely increase effectiveness, efficiency, and legitimacy of the system by increasing the proportionality of financial and human resources costs, producing more timely outcomes, and likely generating more accurate / correct outcomes on criminal matters.

It is estimated that under this option there would be a significant increase in the proportionality of the financial and human resource costs in the court martial system as separate court infrastructure would not be required since the Permanent Military Court headquarters would be co-located with the Federal Court, and the cross-appointed judges would not require any additional salary or office space beyond what they have as Superior Court Judges. Additionally, the Court would use the resources of already existing Federal Court offices across the country.³⁴ Further, since the cross-appointed judges would be drawn from locations closest to the site of any particular military trial, financial savings could be gained from eliminating almost entirely the costs associated with temporary duty and travel. It would also eliminate the need for separate quadrennial Military Judges Compensation Committees,³⁵ since the compensation would be determined under the Judges Act.

It is also assessed that, under this option, there could be a substantial increase in the production of timely outcomes, and a reduction of delay in the court martial system. This option would significantly increase the level of criminal law and adjudication expertise within the judiciary dealing with military offences, since cross-appointed judges would simultaneously sit as Superior Court judges (where they regularly conduct complicated criminal and other trials). This expertise would likely be brought to bear in allowing the judges to deal with cases more quickly on their merits, leading to a potential increase in the generation of accurate / correct outcomes. However, military cases would rely upon resources drawn from the broader civilian justice apparatus under this option, which may result in delay and less timely outcomes due to the potential unavailability of judges when sitting on the Superior Court. Additionally, this option could create a perception that, even with opportunities for annual familiarization and exposure to the CAF and a preference for judges with prior military experience, the cross-appointed judges would not have sufficient military expertise.

Further, it is assessed that this option could provide an increase in scalability when compared with the current court martial tribunal system as the cross-appointed judges could be drawn from a very large pool of federally-appointed civilian judges, and because there would be almost no cost associated with increasing the number of these cross-appointed judges if such an increase were necessary to meet unexpected demand. Similarly, if volume in the Permanent Military Court decreased unexpectedly, then there would be no financial need to reduce the number of cross-appointed judges, and certainly no need to pay judges while they wait for their next military case (as would arguably be the case in the current court martial system if volume decreased unexpectedly). Instead, under this option, the cross-appointed judges would continue to preside in their Superior Court judicial capacity at all times when not presiding as part of the Permanent Military Court.

It is assessed that this option may increase the perceived fairness, transparency, and intelligibility of the court martial system because civilian judges, with military and criminal expertise (to the extent possible), would preside over cases. Under this option there would be less risk in perception that the judges would be unduly influenced by ranks of the participants, or that they would judge cases other than on the facts and law out of a sense of loyalty to the military family – since they would unequivocally be separate and independent from all aspect of the CAF. Additionally, comparative analysis and consultation has shown that this civilianization of the judiciary can have a substantial impact of perceptions of systemic fairness.³⁶ Further, as the trials could generally be held in Federal Court buildings and rooms (i.e.: not on military bases where access may be more controlled) it is assessed that the court martial tribunal system – in its actual operation – would be visible to the broad public (while still visible to the CAF public) in a way that increases transparency. Finally, because the public already understands and recognizes the status of civilian judges who adjudicate in respect of criminal and penal offences, this option may be more familiar and defensible to the public than the current system, and therefore more intelligible.

Footnotes

¹ See Annex Z, Submission of the Director of Military Prosecutions to ADM(RS), 23 January 2017 at 11.

² Canada, Department of National Defence, Director of Military Prosecutions Annual Report 2016-2017 (Ottawa: Office of the Judge Advocate General, 2017), at 33.

³ Canada, Department of National Defence, The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C-25 An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of Statutes of Canada 1998, c.35 (Ottawa: Department of National Defence, September 2003), at 25-28; Canada, Department of National Defence, Report of the Second Independent Review Authority to The Honourable Peter G. MacKay, Minister of National Defence, by The Honourable Patrick J. LeSage (Ottawa: Department of National Defence, 2011) at 37-41.

⁴ National Defence Act, RSC 1985, c N-5, s 165.3 [NDA].

⁵ Ibid, s 187.

⁶ See above, Chapter 5 (Comparative Study) at section 5.2.5 (UK).

⁷ See Senate, Standing Senate Committee on Legal and Constitutional Affairs, Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (Final Report) (June 2017) at 7 (Chair: The Honourable Bob Runciman), [Senate Report 2017] online: <https://sencanada.ca/content/sen/committee/421/LCJC/Reports/Court_Delays_Final_Report_e.pdf>. The Final report of the Standing Senate Committee on Legal and Constitutional Affairs (Senate Report 2017) recommended better use of case management in the civilian criminal justice system at 75:

This committee respects judicial independence and the judiciary’s role in applying the common law and federal, provincial, and territorial statutes, including the Constitution and the Charter of Rights and Freedoms. At this time of reform and cultural shift, however, judges need to make broad efforts to take stock of case management practices and the opportunities provided by technology to modernize the administration of cases and courtrooms across the country.

⁸ For an example of where such a system has been successfully implemented by the judiciary in a court martial system, see “Memorandum 13 – Better Case Management (Court Martial)” in Practice in the Service Courts – Collected Memoranda (Version 6), (London: Military Court Service, 2016) at 56, online: <https://www.judiciary.gov.uk/wp-content/uploads/2015/05/practice-memo-ver-6-1Sep16.pdf>. See also Andrejs Berzins, Q.C, and Malcolm Lindsay, Q.C., External Review of the Canadian Military Prosecution Service, (Ottawa: Bronson Consulting Group, 2008) [Bronson Report (DMP)], at 16:

We found that, with the exception of some recent initiatives on the part of the Chief Military Judge, modern case management techniques now widely used in the civilian criminal justice systems in Canada and elsewhere have generally not been applied to the Court Martial system. For example, there is little case-differentiation in the scheduling of trials with Standing Courts Martial routinely set to last one week, even when the allegations are relatively minor and the issues not complex.

⁹ NDA, supra note 4, s 165.3

¹⁰ See above, Chapter 4 (Consultation) at sections 4.3.1 (Summary of Results), 4.5.4.2.1 (4 CDSG & 2 CMBG), 4.5.4.1.4 (35 CBQ HQ CWO) and 4.5.5.2 (HMCS OTTAWA Crew).

¹¹ See above, Chapter 4 (Consultation) at section 4.4.5 (LCol (ret’d) Perron).

¹² See above, Chapter 4 (Consultation) at sections 4.4.4 (IJ 700), 4.5.4.1.1 (2 Can Div Pers Svcs – CO), 4.5.4.1.2 (2 Can Div Pers Svcs – CWO), 4.5.4.2.1 (4 CDSG and 2 CMBG) and 4.5.4.2.2 (RHFC).

¹³ See above, Chapter 4 (Consultation) at sections 4.3.1 (Summary of Results), 4.4.5 (LCol (ret’d) Perron), 4.5.4.1.1 (2 Can Div Pers Svcs – CO), and 4.5.4.1.2 (2 Can Div Pers Svcs – CWO).

¹⁴ In particular, see above, Chapter 5 (Comparative Study) at sections 5.2.3 (New Zealand), 5.2.5 (United Kingdom), 5.2.7 (Denmark) and 5.2.10 (The Netherlands).

¹⁵ See above, Chapter 5 (Comparative Study) at sections 5.2.2 (Australia) and 5.2.5 (United Kingdom).

¹⁶ See above, Chapter 4 (Consultation), at section 4.5.4.2.1 (2 CMBG & 4 CDSG) and Chapter 5 (Comparative), at sections 5.2.9 (France) and 5.2.10 (The Netherlands).

¹⁷ Bill C-337, Judicial Accountability through Sexual Assault Law Training Act, 1st Sess, 42th Parl, 2017 (First Reading in the Senate on 16 May 2017).

¹⁸ This bill, which would require mandatory sexual assault training for judges (among other things) has been characterized by some as constitutionally suspect. See, for instance, Thomas Harrison, “Judicial education doesn’t breach independence, but Bill C-337 might” Policy Options, 22 May 2017, online: <http://policyoptions.irpp.org/magazines/may-2017/judicial-education-doesnt-breach-independence-but-bill-c-337-might/>

¹⁹ NDA, supra note 4, s 165.22. At the time of this report there were no reserve force judges appointed to the panel.

²⁰ See for instance, the Canadian Human Rights Act, RSC 1985, c H-6, s 48.1(2) [CHRA]: “Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights.”

²¹ For instance, in Denmark, prosecutors wear no military rank (although they have a separate insignia). See above, Chapter 5 (Comparative), at section 5.2.7 (Denmark).

²² See for instance, CHRA, supra note 20, s 48.1(2): “Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights.”

²³ See above, Chapter 4 (Consultation), at sections 4.5.3 (CANSOFCOM) and 4.5.4.2.1 (4 CDSG & 2 CMBG).

²⁴ There would be essentially no financial liability associated with the appointment of a reserve force judge; the liability would only be incurred when the reserve force judge is actually needed to preside in a particular case, and would only last for the duration of the case.

²⁵ See above, Chapter 4 (Consultation), at sections 4.4.5 (LCol (ret’d) Perron) and 4.5.5.2 (HMCS OTTAWA Crew), and Chapter 5 (Comparative), at sections 5.2.2 (Australia) and 5.2.8 (Finland). See also Michel W Drapeau & Gilles Létourneau, Behind the times: Modernization of Canadian Military Criminal Justice, (2017) at 80-81 [Drapeau & Létourneau].

See also Draft Principles Governing the Administration of Justice through Military Tribunals, 62nd Sess, UN Doc E/CN.4/2006/58 (2006), at para 46: “the parties have good reason to view the military judge as an officer who is capable of being ‘judge in his own cause’ in any case involving the armed forces as an institution, rather than a specialist judge on the same footing as any other. The presence of civilian judges in the composition of military tribunals can only reinforce the impartiality of such tribunals.”

See also, Gilles Létourneau, “Canadian military justice system's lack of independence unfair for military personnel”, Ottawa Citizen (22 January 2016), online: <http://ottawacitizen.com/news/national/defence-watch/lack-of-independence-for-canadas-military-justice-system-unfair-for-military-personnel>.

See also Noémi Mercier, “La justice militaire n’est pas indépendante”, L’actualité (18 January 2016), online: <http://lactualite.com/societe/2016/01/18/la-justice-militaire-canadienne-nest-pas-independante/>.

²⁶ This is similar in principle to current CMAC model. See s 234(2) NDA: “(2) The judges of the Court Martial Appeal Court are (a) not fewer than four judges of the Federal Court of Appeal or the Federal Court to be designated by the Governor in Council; and (b) any additional judges of a superior court of criminal jurisdiction who are appointed by the Governor in Council.” See also above Chapter 5 (Comparative), at sections 5.2.3 (New Zealand) and 5.2.5 (United Kingdom).

²⁷ For example, the province of Ontario has several bases and full-time training facilities while the province of Prince Edward Island has less of a military presence, not having a base or full-time training facilities.

²⁸ See for instance, CHRA, supra note 20, s 48.1(2): “Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights.”

²⁹ See Drapeau & Létourneau, supra note 25, at 80-81; Cooperation between the Federal Court and the Court Martial Appeal Court to share material and human resources currently exists and would not likely to present a serious challenge to the implementation of this option.

³⁰ See above Chapter 5 (Comparative), at section 5.2.5 (United Kingdom).

³¹ The CMCRT recognizes that this would require some federal-provincial negotiation to work out mechanisms to implement this option, as well as negotiation between the CAF and the federal Court Administration Service on similar issues.

³² The average number of courts martial from 2011/12-2015/16 was 63. However, there were 78 courts martial from 1 April 2007 to 31 March 2008 (Bronson Report (DMP), supra note 8, at 8).

³³ For instance, in Denmark, prosecutors wear no military rank (although they have a separate insignia), but have military status. See above, Chapter 5 (Comparative), at section 5.2.7 (Denmark).

³⁴ See Drapeau & Létourneau, supra note 25, at 80-81.

³⁵ NDA, supra note 4, s 165.33 (and following).

³⁶ See, for instance, above Chapter 4 (Consultation), at sections 4.3.1 (Summary of Results), 4.5.4.1.1 (2 Can Div Pers Svcs – CO) and 4.5.4.1.2 (2 Can Div Pers Svcs – CWO). See also above Chapter 5 (Comparative), at sections 5.2.3 (New Zealand), 5.2.5 (United Kingdom), 5.2.7 (Denmark) and 5.3 (International Comparative Study – Summary of Lessons).